Catholic University Law Review Volume 62 Issue 3 Spring 2013 Article 7 2013 Can’t Touch This? Making a Place for Touch DNA in Post- Conviction DNA Testing Statutes Victoria Kawecki Follow this and additional works at: https://scholarship.law.edu/lawreview Part of the Criminal Procedure Commons, and the Evidence Commons Recommended Citation Victoria Kawecki, Can’t Touch This? Making a Place for Touch DNA in Post-Conviction DNA Testing Statutes, 62 Cath. U. L. Rev. 821 (2013). Available at: https://scholarship.law.edu/lawreview/vol62/iss3/7 This Comments is brought to you for free and open access by CUA Law Scholarship Repository. It has been accepted for inclusion in Catholic University Law Review by an authorized editor of CUA Law Scholarship Repository. For more information, please contact [email protected]. Can’t Touch This? Making a Place for Touch DNA in Post-Conviction DNA Testing Statutes Cover Page Footnote J.D. Candidate, May 2014, The Catholic University of America, Columbus School of Law; B.A., 2011, Gettysburg College. The author wishes to thank John Sharifi for his exceptional and invaluable insight, guidance, dedication, tenacity, and inspiration throughout this process. She would also like to thank her colleagues on the Catholic University Law Review for their work on this Comment, and her legal writing professors, who taught her to question what she thinks she may know and to always lead with her conclusion. This comments is available in Catholic University Law Review: https://scholarship.law.edu/lawreview/vol62/iss3/7 CAN’T TOUCH THIS? MAKING A PLACE FOR TOUCH DNA IN POST-CONVICTION DNA TESTING STATUTES Victoria Kawecki+ DNA testing is to justice what the telescope is for the stars: not a lesson in biochemistry, not a display of the wonders of magnifying optical glass, but a way to see things as they really are. It is a revelation machine”1 On February 11, 1987, in Fort Collins, Colorado, a passing cyclist discovered the body of a brutally murdered woman exposed in an open field.2 Earlier that morning, fifteen-year-old Timothy Masters had seen the same body.3 Convincing himself that the body was a mannequin, Masters did not report the sighting to police.4 This misstep, coupled with the proximity of the Masters’s home to the crime scene 5 and the discovery of questionable “character” evidence,6 led investigators to interrogate Masters for ten hours + J.D. Candidate, May 2014, The Catholic University of America, Columbus School of Law; B.A., 2011, Gettysburg College. The author wishes to thank John Sharifi for his exceptional and invaluable insight, guidance, dedication, tenacity, and inspiration throughout this process. She would also like to thank her colleagues on the Catholic University Law Review for their work on this Comment, and her legal writing professors, who taught her to question what she thinks she may know and to always lead with her conclusion. 1. BARRY SCHECK, PETER NEUFIELD & JIM DWYER, ACTUAL INNOCENCE: WHEN JUSTICE GOES WRONG AND HOW TO MAKE IT RIGHT xviii (2003) [hereinafter SCHECK ET AL.]. 2. Masters v. People, 58 P.3d 979, 983 (Colo. 2002). The partially nude body of thirty-seven-year-old Peggy Hettrick was found “murdered and sexually mutilated” in a field in Fort Collins, Colorado. Drawn to Murder (CBS News television broadcast Dec. 24, 2011), available at http://www.cbsnews.com/ 8301-18559_162-6025618/drawn-to-murder/. According to medical reports, Hettrick was fatally stabbed in the back with a five-inch serrated knife. Masters, 58 P.3d at 983. 3. According to Masters’s father, Masters normally walked straight through the field each morning on his way to school; however, on the day of the murder, Masters visibly hesitated, veered off course, and stopped—actions his father later interpreted as obvious indications that Masters had seen the body. Drawn to Murder, supra note 2. 4. TIMOTHY MASTERS WITH STEVE LEHTO, DRAWN TO INJUSTICE 3 (2012) (explaining that the body resembled a Resusci Anne Simulator doll which is normally used for CPR practice). The cyclist that eventually reported the discovery to the police also mistook the victim’s remains for a mannequin. Drawn to Murder, supra note 2. Investigators noted that the victim’s body was clean of blood, which added credibility to Masters’s assumption. Id. 5. Masters, 58 P.3d at 983 (explaining that “[t]he body was left within several hundred feet of [Masters’s] home, and could be seen from [his] bedroom window”). 6. The Colorado Supreme Court admitted into evidence numerous graphic drawings, writings with sexual overtones, and a suitcase filled with pornographic photographs of female genetalia, all seized from Masters. Id. at 983–84. Although the Colorado Supreme Court held that some of the drawings and writings could only lead to an inference of bad character, which is 821 822 Catholic University Law Review [Vol. 62:821 shortly after the murder, and to arrest him ten years later. 7 Masters was charged and later convicted of a murder he did not commit.8 After spending almost a decade in prison, Masters was released in 2008.9 Masters’s release and exoneration were partially based on the cutting-edge deoxyribonucleic acid (DNA) analysis of microscopic skin cells left behind by the perpetrator on the victim’s clothing,10 a method colloquially known as “touch DNA” testing.11 Fortunately for Masters, Colorado’s post-conviction DNA testing statute, which permits testing of biological evidence if the petitioner proves by a preponderance of the evidence that “[f]avorable results of the DNA testing will demonstrate the petitioner’s actual innocence,” is broad enough to allow DNA analysis of skin cells. 12 Masters, in this regard, was lucky to have been prosecuted in Colorado. Although states acknowledge the importance of providing avenues for demonstrating actual innocence, inmates are often severly hampered by restrictive post-conviction DNA testing statutes in many states often limiting access to the type of DNA testing that led to Masters’s exoneration.13 The ability to obtain any kind of post-conviction DNA testing hinges on the structure of the statute. The availability of specific types of DNA testing depends on the statute’s definition of testable material (“biological material requirement”), and its emphasis on the expected impact of the testing prohibited by Colorado Rule of Evidence 404, the court found that their admission was “harmless error” in light of the entire record. Id. at 1002–04 (applying COLO. R. EVID. 404(b)). 7. Drawn to Murder, supra note 2. After Masters’s father—his only alibi witness—died, the state again pursued Masters’s arrest by reevaluating previously collected evidence. MASTERS WITH LEHTO, supra note 4, at 148–49. 8. Masters, 58 P.3d at 983 (noting Masters’s conviction by jury verdict). 9. Trevor Hughes, Tim Masters Formally Exonerated for 1987 Murder of Peggy Hettrick of Fort Collins, THE COLORADOAN (Fort Collins, Colo.) (June 28, 2011), available at http://www.coloradoan.com/article/20110628/UPDATES01/110628016/Tim-Masters-formally -exonerated-1987-murder-Peggy-Hettrick-Fort-Collins. 10. Miles Moffett, DA Set to Drop Masters Case, DENVER POST (Jan. 25, 2008), http://www.denverpost.com/ci_8071788. The Masters defense team traveled to Amsterdam, where the victim’s clothing underwent touch DNA testing. Drawn to Murder, supra note 2. 11. Touch DNA, BODE TECHNOLOGY, http://www.bodetech.com/forensic-solutions/dna -technologies/touch-dna/ (last visited Apr. 15, 2013) (explaining that touch DNA can link perpetrators to a particular crime if the perpetrator leaves enough skin cells behind on an item at the crime scene). 12. COLO. REV. STAT. § 18-1-413(1)(a)–(b) (2012). Similar to the District of Columbia’s Innocence Protection Act (IPA), the Colorado statute uses equivocal language, such as the term “demonstrate.” See infra notes 121, 173 and accompanying text (analogizing the IPA’s materiality language to a “some evidence” standard). 13. See, e.g., State v. Solman, 29 A.3d 183, 188–90 (Conn. App. Ct. 2011) (denying an application for touch DNA testing despite the petitioner’s argument that the purpose of the statute is to provide access to potentially exculpatory DNA evidence), cert. denied, 33 A.3d 739 (Conn. 2011); Hood v. United States, 28 A.3d 553, 560, 566 (D.C. 2011) (denying an application for touch DNA testing despite the IPA’s alleged purpose to allow access to “powerful techniques of DNA analysis”). 2013] Touch DNA in Post-Conviction DNA Testing Statutes 823 (“materiality requirement”). 14 Some statutes broadly define biological material, allowing for touch DNA testing if the petitioner can show—with varying levels of certainty—that the test results will support his or her claim of innocence.15 Other statutes regulate the types of evidence that can be tested to such an extent that touch DNA is not plainly eligible for post-conviction consideration.16 Finally, the District of Columbia’s Innocence Protection Act (IPA) definitively repudiates touch DNA testing. 17 The IPA altogether precludes post-conviction touch DNA testing, setting a potentially dangerous precedent for other jurisdictions with similar statutes.18 Had Masters sought post-conviction relief in the District of Columbia, he would probably still be incarcerated. The IPA is an extreme example of the problematic and restrictive language that plagues many post-conviction DNA testing statutes.19 Typical of this type of statute, the IPA presents two obstacles that a touch-DNA petitioner must overcome. First, the statute requires that the testing will help to demonstrate the petitioner’s actual innocence. 20 Second, the IPA limits testing to 14. See infra Part I.D (explaining the significance of the biological material and materiality requirements in post-conviction DNA testing statutes in the District of Columbia, Maryland, and Texas).